Tanzania's Constitution Violates the Rights of Political Candidates

JURIST Guest Columnist Roland Adjovi, Academic Director of the Arcadia Center for East African Studies says that by forbidding independent political candidates, the Tanzanian Constitution violates the African Union Charter on Human and People's Rights ...

On June 14, 2013, the African Court on Human and Peoples' Rights delivered its judgment in the case brought by Rev. Christopher Mtikila against the government of the United Republic of Tanzania. The court granted three out four arguments presented by the applicant. The ruling is quite unique not only for the core element of the case (independent candidate for national elections) but also for the order made to the respondent state to take all constitutional and legislative measures required to comply with the court decision.

Mtikila is a political leader in Tanzania. He founded and continues to lead the Democratic Party. Just before multiparty democracy started in Tanzania in early 1990, the ruling party named CCM introduced a requirement in the electoral framework for any candidate to be affiliated to a political party. This was enshrined in the Constitution of the [African] Union. As a result, Mtikila could not run as an independent candidate, and started enrolling in the CCM and later in the opposition party, Chadema. Later on, he managed to set up his own political party. In between, he challenged the prohibition of independent candidacy before the High Court. But, after overcoming various obstacles, the Appeals Court of Tanzania in 2010 overturned the decision, stating that the issue was political and it was the responsibility of the legislative to take appropriate measures.

During Spring 2011, while I was teaching human rights law in Africa at the Arcadia Center in Arusha with a small group of students, we decided to improve the learning experience focusing on a concrete case. We researched at the Appeals Court of Tanzania and identified the judgment in Mtikila's case as quite interesting. We then worked on it for some weeks with the aim of drafting an application. The students' commitment was so high that we agreed to look for Mtikila and offer him our services. We got the post office box of the Democratic Party online and some email addresses. However, all email addresses failed and we printed our email and sent it to him by post mail. A week later, he called with a very enthusiastic mood. We met and he provided the details we did not have, and signed a power of attorney. We were planning to file our application early June when two local organizations, the Tanganyika Law Society (TLS) and the Legal and Human Rights Center (LHRC) filed a very similar application on June 5, 2011. After a meeting with Mtikila, we agreed that our arguments were more elaborate and we had a better ground for admissibility. We therefore filed a separate application [PDF] for Mtikila on June 11, 2011, and his team was composed of myself, Counsel Adeogun-Phillips (Nigeria) and Counsel Dako (Benin) with three legal assistants who were the three students dedicated to the case, namely Thompson Megan (USA), Njau Deogratias (Tanzania) and Birdi Mary (Tanzania).

Mtikila. submitted to the Court that:

(i) The requirement for any candidate to be affiliated to a political party violates the freedom of association;
(ii) The same requirement prevents him from freely participating in public affairs in his country;
(iii) The same requirement discriminates between Tanzanians who adhere to political party and those who do not, and finally
(iv) The government introducing a constitutional amendment addressing a matter being litigated in court violates the rule of law principle.

The mainland Bar Association (TLS) and the prominent Tanzanian human rights organization (LHRC) made similar arguments except for the rule of law, but in a more concise written submission. On September 22, 2011, the court motu proprio, and without consulting the parties, made an order for joinder [PDF] of the two cases. In June 2012, the parties appeared before the court to make their oral submissions. Tanzania raised various preliminary objections in its written submissions, and repeated them during the public hearing. Mtikila, TLS and LHRC responded against those objections, and expressed their common interest on the core issue at stack. Parties also argued the merits of the case as per the instructions of the court.

On June 14, 2013, the court found that the requirement enshrined in the Constitution of Tanzania for any candidate to an election to be affiliated to a political party violates the African Charter in various provisions related to non-discrimination, to the freedom of association and to the right to participate in public affairs. The president of the court read at length the reasoning of the court referring not only to African human rights instruments but also universal instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, and to regional instruments such as the European Convention on Human Rights and the Inter-American Convention on Human Rights. The court abundantly referred to the jurisprudence developed by various human rights organs established to enforce some of those instruments, especially to General Comment 25 of the Human Rights Committee as an authoritative interpretation of the ICCPR as critically argued by Mtikila (see paragraphs 21 and 22 of his application).

However, the court rejected the argument on the rule of law, affirming that the applicant failed to show the right violated, even though the court admitted that rule of law is a very broad concept which encompasses all human rights. In his application, Mtikila explained the complexity of the principle, but focused on the separation of power and the independence of the judiciary (see paragraphs 50-54 of the Application). Only the written judgment would help understand better the reasoning of the court.

As a result, the court ordered the United Republic of Tanzania, which has already embarked on a constitutional review ahead of its next general elections in 2015, "to take constitutional, legislative and all other necessary measures within a reasonable time to remedy the violations... and to inform the Court of the measures taken." In addition, the court invited Mtikila to substantiate his claims for reparation within 30 days.

This is the first judgment of the African Court on the merits, and it has an implication for numerous African countries where independent candidates for election are not allowed. One needs to watch closely its implications on the electoral laws in Africa, while looking forward to the judgment on reparations.

Roland Adjovi is the Academic Director at the Arcadia Center of Arcadia University in Arusha, Tanzania. He previously served as Senior Legal Officer for the Registry of the International Criminal Tribunal for Rwanda and as legal assistant for the Organization for African Unity, as well as serving as Editorial Assistant for the African Yearbook of International Law (through AFIL, the African Foundation for International Law).

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